Legal Ruling-civil Suit To Proceed Against City For Volunteer Firefighter's Arson

(1) LOUISIANA COURT PERMITS CIVIL SUIT TO PROCEED AGAINST CITY FOR VOLUNTEER FIREFIGHTER'S ACTS OF ARSON

In Trinity Universal Insurance Company v. Darryl James Lyons, et al., Case No. 04-1494, the Court of Appeal of Louisiana, Third Circuit, (March 2, 2005), reversed judgment for the City of Westlake permitting the civil action to go forward.

In the early morning hours of July 26, 2000, James Lyons, Jr., a junior volunteer firefighter with the City of Westlake Fire Department, set fire to a building owned and occupied by American Legion Post # 370 (the American Legion) in Westlake. Trinity Insurance Company (Trinity), the American Legion's insurer, filed suit against James, his parents, and the City of Westlake to recoup the funds it paid the American Legion for damages caused by the fire. The City of Westlake filed a motion for summary judgment in which it asserted that Trinity could not establish liability against it for James' arson. The trial court granted the motion. Trinity appealed. For the following reasons, the Appellate Court reversed and remanded for further proceedings.

In 1999, the Westlake Fire Department instituted a program for junior volunteer firefighters. These young volunteers received essentially the same training that adult volunteer firefighters received. Beginning in early March 2000, James started three fires in Westlake, the last being the fire at the American Legion. During that same time, he stole payroll checks and gas cards from the Westlake Fire Department. The record indicates that James had been a volunteer for approximately fifteen months when he set the fire at the American Legion.

James' identity as the arsonist came to light when Jarrod Roy, his friend and co-volunteer, related his suspicions that James set the fire at the American Legion to the police during its investigation of the fire. Jarrod had related his suspicions to the assistant fire chief before the fire. The police questioned James, and he confessed that he started it. He also confessed to starting the other two fires.

Trinity asserted that there are three bases of liability for the City of Westlake: 1) the City had a duty to conduct psychological testing on junior volunteer firefighters; 2) the City had a duty to act on Jarrod's suspicions when he related them to the assistant fire chief; and 3) the City was vicariously liable for James' arson under La. Civ. Code art. 2320. The trial court rejected the first and third bases as grounds for liability on the part of the City and determined that the City did not have sufficient time to act on the Jarrod's suspicions before the fire.

Trinity argued that the City's failure to require psychological testing of volunteers is a factual determination not properly decided by summary judgment. It did not cite any authority for this proposition. In Smith v. Lafayette Parish Sheriff's Department, 03-517 (La.App. 3 Cir. 4/21/04), 874 So. 2d 863, writ denied, 04-1886 (La. 10/29/04), 885 So. 2d 595, the court rejected the same argument with respect to a sheriff's failure to have employee applicants psychologically tested and concluded that the failure to do so was not a basis for liability for damages suffered by a victim raped by one of his deputies.

In Smith, the court observed:

Sheriff Breaux established a hiring/retention policy when he took office which was within the course and scope of his lawful powers and duties. LPSD followed the policy when Mr. Comeaux applied to retain his position with LPSD. No statutes, regulations, or other legal requirements directed the hiring of law enforcement employees. Therefore, Sheriff Breaux's hiring/retention policy was a discretionary act, and liability cannot be imposed on LPSD for its application of the policy.

Trinity has not presented any evidence of a statute, regulation, or requirement which requires a fire department to institute specific policies, guidelines, or testing requirements for hiring employees or volunteers. Furthermore, Trinity has not presented any evidence that the City violated any of its own hiring policies or guidelines when it accepted James into its junior volunteer program. The court found no error with the trial court's rejection of this claim.

Trinity also argued that because the City instituted psychological testing for its employees and volunteers after this fire, it should be found liable for failing to test James. Louisiana Code of Evidence Article 407 provides in part: "In a civil case, when, after an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event." That argument was without merit.

Trinity next argued that the City is liable pursuant to La.Civ.Code art. 2320 which provides in part: "Teachers . . . are answerable for the damage caused by their scholars or apprentices, while under their superintendence." It contends that the trial court improperly focused only on the employer/employee relationship in its determination that the City is not responsible for James' actions under this provision. Trinity urges that James utilized "specialized knowledge" he acquired through his participation in the junior volunteer program which allowed him to determine an "ignition point" of the American Legion building and destroy it. Continuing, it points to the third paragraph of Article 2320, which provides in part: "responsibility only attaches, when . . . teachers . . . might have prevented the act which caused the damage, and have not done it," renders the City liable. The court did not agree. James was not under the "superintendence" of the fire department at the time he set the fire at the American Legion. The City provided the information to its employees and volunteers with the intention that it be used to assist in fighting fires, not setting them. While James may have utilized information he learned in the volunteer program to set the fire at the American Legion, Article 2320, under facts of this case, does not provide a basis for holding the City liable for James' actions.

With regard to the employer/employee relationship, Trinity argued that the relationship between the fire department and the volunteer firefighters was equivalent to a master/servant relationship and that the City, as employer, is vicariously liable for James' actions. In Richard v. Hall, 03-1488 (La. 4/23/04), 874 So. 2d 131, an employee was engaged in a recreational activity which the plaintiffs urged was for business purposes (hunting on a lease paid for by the employer) when he committed a tort which injured the plaintiff. The court found the situation in Richard analogous to the one at hand because James was on his own time and was not performing any volunteer duties at the time he set the fire. In determining whether the employee's actions were within the scope of his employment, the supreme court held: "our focus is on the servant and whether his activity at the time of the accident was within the scope of his employment. The servant must be motivated at least in part to serve the master's business." Neither of these factors was even arguably present here. Accordingly, the court found no error with the trial court's rejection of these contentions of liability.

Trinity asserted that the City had information James would set a fire the night of the American Legion fire and that it was negligent in failing to act on that information. It argued to the trial court that Jarrod related his suspicions to Mr. Picou, the assistant fire chief, the evening of July 25, 2000, and that, if the City had acted on that information, the fire at the American Legion could have been prevented. The trial court rejected the argument.

In his written statement dated July 27, 2000, Jarrod explained how he became suspicious that James was setting fires:

"James always told me that he would see me at the fire tonight. James told me this as a joke. Recently when James would tell me that there would be a fire tonight, there really was a fire. I started getting suspicious and when James would tell me this I would tell Asst. Fire Chief Jaques Picou. . . . James said that he was going to go. As James was walking out of the door James told me that he would see me in the morning. When I got off of work I went to the Westlake Fire Department and told Jaques Picou what James told me at Popeyes".

According to Jarrod's statement, he did not relate his suspicion that James was going to set a fire July 25, 2000 to Mr. Picou until after he got off work which was after 9:15 p.m. The fire occurred at approximately midnight. If this was all that Jarrod had stated, the court would find no error with the trial court's conclusion that this short period of time was insufficient for the City to have acted on his suspicions. It was not.

Jarrod also stated that he had related his suspicions to Mr. Picou more than once and before the evening of July 25, 2000. If in fact he did, the City may have had time to conduct an investigation to determine whether his suspicions were correct. There is not enough information in the record to make this determination. Therefore, the City has not established that there are no genuine issues of material fact regarding its knowledge of Jarrod's suspicions and whether it could have investigated those suspicions and prevented the fire at the American Legion. Accordingly, the judgment of the trial court which granted the City's motion for summary judgment was reversed. The motion was denied, and the case is remanded for further proceedings to determine whether Jarrod's previous suspicions coupled with the information on July 25, 2000 warranted investigation by the City of Westlake before the American Legion fire was set.

The trial court's grant of summary judgment in favor of the City of Westlake was reversed, and the case was remanded for further proceedings in accordance with this opinion. All costs are assessed to the City of Westlake.

From 5/29/2002...The original post

Former firefighter sentenced for starting three fires

LAKE CHARLES, La. (AP) - A man who pleaded no contest to setting
three fires while he was a Westlake junior volunteer firefighter
will be on probation for five years.
Darrell James Lyons Jr., 19, also must get counseling twice a
month and pay $150 a month toward victims' restitution while he is
on probation, Judge Wilford Carter said Tuesday.
Lyons pleaded no contest in March to three felony counts of
arson, rather than face trial on those charges and three which were
dismissed: two of forgery and one of unauthorized use of an access
card.
The fires, all in Westlake, were set at an American Legion post,
a field behind a dance school and a vacant building.
Lyons' parents were firefighters, and he wanted to be a fireman
in Chicago, Westlake Police Chief Gary "Stitch" Guillory said in
March.
People in the Westlake Fire Department's Junior Volunteer
proorAi help clean trucks and pack hoses, and fight some fires
under firefighters' supervision.

1) the City had a duty to conduct psychological testing on junior volunteer firefighters; 2) the City had a duty to act on Jarrod's suspicions when he related them to the assistant fire chief; and 3) the City was vicariously liable for James' arson under La. Civ. Code art. 2320.

They haven't been held responsible, yet at least.

The way I read that decision is the trial court summarily dismissed the case, the appeals court said it had to go to trial.

The insurance company still has to prove points 1 and 2 above. 1 frankly I'm leary of -- it's coming at sometime, but it certainly isn't widely accepted practice yet. 2 I'm not sure on -- they had three hours, but to what degree did the honestly think it was credible, what where they doing during that time, etc. But that's why we have courts to judge this stuff.

#3 I don't know since I don't know Lousiana law much at all other than it has a lot of quirks the rest of the U.S. doesn't in some areas.

BUT...even if this case doesn't succede, there's a good chance it will at least be studied by someone in the future building a similiar case and figuring out where the weaknesses are.

Yes, Dal, you're right. They just reinstated the cse. But it is going to cost a ton of time and money to defend it.

As far as point 1-Their problem is that they are doing it now, in response to the incident. It's almost like a tacit admission that this would have been something that would have prevented the fire department from allowing the moron to get on the FD.

The second point is a slam dunk and will absolutely be what screws them. If you are the Chief, and you are told by a member of your FD, that he has possible info regarding the series of set fires that you have been experiencing and he believes he may have info that a fire will occur tonight, what do you believe the responsible thing to do would be? It certainly is not keep the info to yourself. That is what there is a PD for.

In my experience, (over 35 FF arson cases), members of the FD and in many cases the Officers, absolutely knew that one of their people was setting the fires. During the discussion here about FF arson, one thing that has been discussed is that many VFD members would rather have a series of arosn fires than stop it. They enjoy it.

I completely agree about point 3.

The reason I posted this was not to bash the FD involved. But to demonstrate that sometimes the process of getting sued is worse than the resolution of the suit. Despite what many believe, a FD CAN be sued for these types of things.

According to Jarrod's statement, he did not relate his suspicion that James was going to set a fire July 25, 2000 to Mr. Picou until after he got off work which was after 9:15 p.m. The fire occurred at approximately midnight. If this was all that Jarrod had stated, the court would find no error with the trial court's conclusion that this short period of time was insufficient for the City to have acted on his suspicions. It was not.

Jarrod also stated that he had related his suspicions to Mr. Picou more than once and before the evening of July 25, 2000. If in fact he did, the City may have had time to conduct an investigation to determine whether his suspicions were correct.

Yep, #2 looks like big oops.

I hadn't noticed that the first time. If the only notice was the one at 9pm about a non-specific possible threat and like the court said, that short of a period of time wouldn't have been enough unless the Chief laughed it off or something.

As far as point 1-Their problem is that they are doing it now, in response to the incident. It's almost like a tacit admission that this would have been something that would have prevented the fire department from allowing the moron to get on the FD.

I hear you George, and I know I've heard Attornies say similiar things. I've also heard other ones I tend to like more who say hogwash, do the right thing -- fix what you've found to be broken. It may make it a little more difficult to defend against, but it's not necessarily an admission you did anything wrong before. "Yes, we're doing this now, but it *is not* a standard my client should have been held to at the time of the incident."

I almost think that is more a tactical decision than a strict legal issue -- and some weanie municipal attorney who is lazy would much rather have you not "do the right thing" so he wouldn't have to explain that in court.

According to original post the trial court opinions on #1 & #3 were upheld. The appellate did not say #2 was a valid argument, just that the insurance co should be allowed to proceed with trying to prove #2.

No details in post on Jarrod’s suspicions/reports prior to the events of July 25. Perhaps not of particular interest to the insurance co while they were hanging their hat on #1 & #3. Would be interesting to know this critical information(to the insurance co). If I was on a jury I would sure want to know why Jarrod delayed in reporting his suspicions. Looks to me like pretty tough to demonstrate the FD is liable for failing acting on the hearsay/suspicions of a minor. The character of Jarrod is likely to be be torn apart if proceeds to trial. Likely the insurance co is just looking for a settlement so they can dump some of their expense on the FD insurance carrier.

Originally posted by neiowa According to original post the trial court opinions on #1 & #3 were upheld. The appellate did not say #2 was a valid argument, just that the insurance co should be allowed to proceed with trying to prove #2.

No details in post on Jarrod’s suspicions/reports prior to the events of July 25. Perhaps not of particular interest to the insurance co while they were hanging their hat on #1 & #3. Would be interesting to know this critical information(to the insurance co). If I was on a jury I would sure want to know why Jarrod delayed in reporting his suspicions. Looks to me like pretty tough to demonstrate the FD is liable for failing acting on the hearsay/suspicions of a minor. The character of Jarrod is likely to be be torn apart if proceeds to trial. Likely the insurance co is just looking for a settlement so they can dump some of their expense on the FD insurance carrier.

If you are referring to the apparent delay on the last day of this mess, it might be because he had reported it in the past and nobody did anything.

Certainly you aren't suggesting that the Chief is off the hook becuase this kid (and that is what he is) didn't come to him right away, are you?

Once Jarrod conveyed his concerns to the fire department's top official, the words "duty to act" comes to mind.
Why would the chief not at least call the kid (Lyons) in and in the strongest of terms, let him know that setting fires was not a good thing? Perhaps the chief thought that Jarrod wasn't credible, but if there was no reason to doubt his credibility, then there is no reason for not following through on the information.
And if this case goes forward, then I want to see it applied to situations where scumbag arsonists who set fires that kill firefighters get sued by the insurance companies, state and federal governments for restitution when benefits are paid out. Make them so poor, they can't even afford a 50 cent lighter.
And I also completely agree with the notion that fire departments CAN be held liable for major screw ups.
As they should be.
Baird; are you lurking and listening?
CR

This issue will definitely be sticky for the City and the Chief with regards to Point #2. My guess is that the city and the Chief will have to cough up some money in the end because the problem was not confronted at the first allegation by Jerrod.

I guess the lesson to be learned here is to confront allegations of fellow FF misconduct early. 1) It reduces liability, and 2) It would nip in the bud any rumors concerning those allegaions that might make for tension in the FD.

One thing to keep in mind is that down here, much of our law is governed by the Napoleonic Code, which is quite different from the basis of law used anywhere else in the country. What this means is that the decisions made in this case in La. might not work out quite the same in the rest of the country.
From what I have read, the department is in pretty good legal shape, with the exception of point number 2. Even under our weird laws here, they should have notified law enforcement of thier concerns.

Originally posted by LaFireEducator One thing to keep in mind is that down here, much of our law is governed by the Napoleonic Code, which is quite different from the basis of law used anywhere else in the country. What this means is that the decisions made in this case in La. might not work out quite the same in the rest of the country.
From what I have read, the department is in pretty good legal shape, with the exception of point number 2. Even under our weird laws here, they should have notified law enforcement of thier concerns.

In La., are the State Courts called Circuit Courts? Or was the appeal heard in the Third Circuit Federal Court?

‎"The education of a firefighter and the continued education of a firefighter is what makes "real" firefighters. Continuous skill development is the core of progressive firefighting. We learn by doing and doing it again and again, both on the training ground and the fireground."
Lt. Ray McCormack, FDNY